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  • Family Law Section Blog
    December 02, 2021

    Pursuing Attorney's Fees in Family Law Cases

    Four statutes authorize the recovery of attorney's fees for clients and lawyers in family law cases in Wisconsin. Karyn Gimbel Youso discusses the statutes, two of which apply generally to all civil cases and two that are specific to the family law statute.

    Karyn Gimbel Youso

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    Family law actions are expensive to maintain, both for the client who is seeking a favorable outcome, and for the attorney who may not be timely paid. When one of the parties to a case is uncooperative, highly adversarial, or less than forthright, the costs of the case may escalate – to the detriment of both client and counsel.

    Four Wisconsin statutes authorize the recovery of attorney's fees for clients (and sometimes their attorneys) in family law cases. Two apply generally to all civil cases but have application in family law. Two are found in the family law statute.

    Wis. Stat. section 767.241: Award of attorney fees and other fees and costs

    This family law statute gives the court the authority to order a party to pay to the opposing party a reasonable amount for the cost of maintaining or responding to the family court action, including attorney's fees.

    Karyn Gimbel Youso Karyn Gimbel Youso, Washington University 1992, is the owner of First Look Family Law, S.C., in Brookfield, where she focuses on low conflict divorce and mediation.

    The court must consider the financial resources of both parties, and the overtrial doctrine may be invoked when one party's unreasonable approach to litigation causes the other party to incur extra or unnecessary fees.1 This policy is equally applicable with respect to guardian ad litem fees.2

    The court may order that the fees be paid to the party or directly to the attorney representing the party (or to any governmental agency providing services), but the court cannot enter a judgment in favor of the attorney directly.

    Nonmarital assets may be considered in determining whether to order one party to contribute to the other's fees.3

    Wis. Stat. section 767.264: Dismissal; vacation; substitution or withdrawal of attorney

    Under section 767.264(2)(a) of this provision:

    upon making an order for dismissal of, for substitution of attorney in, for withdrawal of attorney from, or for vacation of a judgment granted in an action affecting the family, the court shall, prior to or in its order, grant separate judgment in favor of an attorney who has appeared for a party to the action and in favor of a guardian ad litem for a party or a child for the amount of fees and disbursements to which the attorney or guardian ad litem is, in the court's judgment, entitled and against the party responsible for the fees and disbursements.

    In other words, the court has the authority to enter a judgment for the fees owed by the client to an attorney who is permitted by order of the court to withdraw, regardless of when or if the client retains another attorney to replace the withdrawing attorney in that case.4

    The court can also make a finding of reasonableness with respect to the award of those fees. The request for fees should be filed simultaneously with the motion to withdraw or the stipulation for substitution of counsel. Outside of the specific situations addressed by the statute, an attorney would have to file a separate action for the recovery of legal fees.

    Wis. Stat. chapter 785: Contempt of Court

    Under Wis. Stat. section 785(1)(a), "contempt of court" means the intentional misconduct of a party who interferes with a court proceeding or administration of justice, or who impairs the respect due the court.

    It is perhaps more commonly identified by section 785(1)(b), which includes "disobedience, resistance or obstruction of the authority, process or order of a court." This would include the failure of a party to follow a court order, to show up as a witness when subpoenaed, or to refuse to produce evidence when required.

    The court has remedial power to impose sanctions on contemptuous parties after proper notice and a finding of contempt, including the imposition of "payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court."5 This includes attorney's fees incurred as a result of having to file the motion for contempt.

    Wis. Stat. section 802.05: Signing of pleadings, motions and other papers; representations to court; sanctions

    Wisconsin gives practitioners the right to sue for attorney's fees if pleadings or papers filed are frivolous, used for an improper purpose, or fail to state a claim.

    Both clients and their attorneys who sign the papers are obligated to conduct reasonable inquiry before filing the papers, to ensure they have a basis in fact or law. It requires litigants to "stop and think" before making legal or factual contentions.

    It also emphasizes the duty of candor by subjecting litigants to potential sanctions for continuing in a position that is no longer supportable, but protecting against those sanctions if they withdraw or correct their claims after a potential violation is brought to their attention.

    Sanctions may include an award of actual fees and costs to the party victimized by the frivolous conduct. Sanctions may be awarded if the court determines that the party or attorney has filed the pleading or paper without due diligence, or with an intent to harass or cause unnecessary delay or needless increase in the cost of litigation.

    Sanctions and fees may also be awarded if the claims, defenses, or other legal contentions stated in the paper are not warranted by existing law or support a good argument for extension of the law.

    Sanctions under this statutory provision are not applicable to oral arguments, or to disclosures and discovery requests, responses, objections, and motions that are subject to the rules of civil procedure governing depositions and discovery in Wis. Stat. sections 804.01 to 804.12.

    This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section webpages to learn more about the benefits of section membership.

    Endnotes

    1See In re Marriage of Ondrasek v. Ondrasek, 126 Wis. 2d 469, 377 N.W.2d 190 (Wis. Ct. App. 1985).

    2See Hottenroth v. Hetsko, 2006 WI App 249, 298 Wis. 2d 200, 727 N.W.2d 38.

    3See In re Marriage of Doerr v. Doerr, 189 Wis. 2d 112 (1994), 525 N.W.2d 745 (Wis. Ct. App. 1994).

    4See Kohl v. Dewitt, Ross & Stevens, 2005 WI App 196, 287 Wis. 2d 289, 704 N.W.2d 586.

    5 Wis. Stat. section 785.04.



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    Family Law Blog is published by the Family Law Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Donna Ginzl and review Author Submission Guidelines. Learn more about the Family Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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